Confessions and Pretrial

Question 1

Federal Constitutional Challenges to Exclude

Answer 1

1) Fourteenth Amendment due process clause
a. Voluntariness – must not be the product of police coercion that overbears the suspect’s will.
2) Sixth Amendment right to counsel
3) Fifth Amendment Miranda doctrine
In order to apply – custody + interrogation.

Question 2

Interrogation

Answer 2

Any conduct the police knew or should have known was likely to elicit an incriminating response

Question 3

Valid Waiver

Answer 3

Knowing and intelligent, suspect understands the nature of the rights AND the consequences of abandoning them

DE RULE: If an attorney is at the police station waiting to see the suspect, and the police intentionally or negligently fail to inform the suspect of that fact, a waiver of the right to counsel is invalid.

Question 4

Invoking Miranda Rights

Answer 4

• Invoking the right to remain silent
• Invoking the right to counsel – only place the court has stood by or expanded the power of the right to counsel
  o Not offense specific – Fifth Amendment right is not offense specific
  o Duration of prohibition – expires 14 days after a suspect Is released from custody.

Question 5

2 Challenges to Pretrial ID and the Remedy

Answer 5

a. Right to Counsel
b. Due Process Standard - A pre-trial identification procedure violates the Due Process Clause of the Fourteenth Amendment when it is so unnecessarily suggestive that it creates a substantial likelihood of misidentification.
- The Remedy = Independent Source
o Prosecutor can point to such facts as:
 The witness’s opportunity to view the defendant at the crime scene
 The specificity of the description given to police
 The certainty of the witness’s identification.

Question 6

Initial Appearance

Answer 6

Following arrest, a defendant must be brought before a magistrate without unreasonable delay. Magistrate will then:
- Inform the defendant of the charges filed against them
- Advise the defendant of the right to retain or request counsel
- Advise the defendant of the right to a primary probable cause hearing

Question 7

Bail

Answer 7

Amount should be no greater than what is necessary to ensure the accused’s presence at trial.
- Bail may be denied and the accused detained pending trial based on proof they are a danger to the community.

Question 8

DE Preliminary Hearings

Answer 8

Takes place no more than 20 days after arrest, 10 days for those denied bail, to determine whether there is probable cause that the defendant committed the charged offense
- Can be waived by the defendant.